They’ve been telegraphing it for days, and today’s release of the House Repubs’ “Pledge to America” does indeed contain a nod to tentherism. It comes in the form of a requirement — that House Repubs are now pledged to adopt if they get control of the House next year — to “Adhere To The Constitution.”
The implication — that under liberals, the Constitution has not been adhered to — if clear enough. The full specific pledge goes like this:
“For too long, Congress has ignored the proper limits imposed by the Constitution on the federal government. Further, it has too often drafted unclear and muddled laws, leaving to an unelected judiciary the power to interpret what the law means and by what authority the law stands. This lack of respect for the clear Constitutional limits and authorities has allowed Congress to create ineffective and costly programs that add to the massive deficit year after year. We will require each bill moving through Congress to include a clause citing the specific constitutional authority upon which the bill is justified.”
The “limits imposed by the Constitution on the federal government” is a reference to the 10th Amendment and to the relatively brief list of powers explicitly enumerated to Congress in Article I.
The pledge, if turned into a law or rule of the House, would simply require that each law say where in the Constitution the power to make the particular law are delegated to Congress. As I have noted previously, a great many things that the federal government does, including the operation of some of its biggest and most politically sacred programs (I’m referring here to Social Security and Medicare, but there are many others) do not rest firmly on explicitly described powers of Congress, but have been ruled Constitutional by Supreme Court using the less explicit, more elastic powers, such as the powers to tax, to spend, to regulate interstate commerce, to promote the general welfare and to do whatever is “necessary and proper” to do the other things that are listed.
That may turn out to be how this new idea of requiring a Constitutional citation in every bill turns into a non-factor. As the Wall Street Journal’s “Law Blog” notes, there is always at least a halfway credible claim of constitutional authority lurking in the background of bills, especially in those elastic clauses. I’m not sure the new requirement, if the Repubs are able to enact it, will make a huge difference. But personally, I can’t see the big problem either with asking that Congress pause and ask itself “do we have the Constitutional authority to do what we are about to do?” But if history is any guide, if it’s something members of Congress want to do badly enough, it has enough connection to commerce and general welfare to do it. Those who disagree can challenge the constitutionality with a lawsuit. But that is the system we have now, with or without the new “pledge.”
Here’s the Washington Post’s Dan Balz first reaction to the whole Pledge document, which he deems to be “a political document in the guise of a governing agenda.”
Update or oversight or something like that, for those wnho don’t normally read the comment threads:
Alert commenter Clare LaFond notes in the first comment of the thread something I had not noticed (because I wrote this post without reading the full text of the Repub “Pledge.” There is more than a nod to the Tenth Amendment in it. In the document’s preamble, it says:
“We pledge to honor the Constitution as constructed by its framers and honor the original intent of those precepts that have been consistently ignored — particularly the Tenth Amendment, which grants that all powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”